Citation Nr: 1543814
Decision Date: 10/14/15 Archive Date: 10/21/15
DOCKET NO. 09-24 356 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right hand arthritis, to include as secondary to service-connected right fourth finger fracture residuals.
2. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, with bilateral anterior cortical cataracts.
3. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Lech, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1963 to July 1965, and from April 1966 to April 1987.
This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2008 and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran requested a hearing before the Board in his July 2009 formal appeal. In a September 2011 statement, he indicated that he wished to withdraw his hearing request. As such, the Board deems the hearing request withdrawn.
FINDINGS OF FACT
1. In a September 2002 rating decision, the RO denied the Veteran's claim for right hand arthritis. Evidence received since the September 2002 decision is not new and material, and the Veteran's claim for service connection for right hand arthritis cannot be reopened.
2. For the entire period on appeal, the Veteran's diabetes mellitus, type II, was characterized by the need for insulin injections, oral medications, and control of diet; regulation of activities in order to control diabetes was not shown.
3. The Veteran's service-connected disabilities do not prevent him from securing substantially gainful employment.
CONCLUSIONS OF LAW
1. The September 2002 rating decision that denied reopening of the Veteran's claim of entitlement to service connection for right hand arthritis is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 3.156(b) (2015).
2. New and material evidence has not been received to reopen a claim of entitlement to service connection for right hand arthritis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
3. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, 4.119, DC 7913 (2015).
4. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.
A. New and Material Evidence - Right Hand Arthritis
Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2014). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2014); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2014); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The Veteran's original November 2001 claim of entitlement to service connection for "gouty arthritis" of the right hand was denied in a September 2002 rating decision, essentially on the basis that a diagnosis of right hand arthritis was not shown in-service or a year after, and no evidence of record tied the Veteran's then-current right hand ostearthritis to his active service or any incident therein. The Veteran filed a Notice of Disagreement in March 2003. The RO issues a Statement of the Case in December 2004. The September 2002 decision was based on the Veteran's service treatment records (STRs), service personnel records (SPRs), and VA medical treatment records. The Veteran did not appeal the decision further. Accordingly, it became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2015).
The Veteran filed a claim to reopen his claim of entitlement to service connection for right hand arthritis in April 2010. Although he and the RO characterized the April 2010 application as a new claim, it was actually a claim to reopen a previous-denied claim. In an April 2012 rating decision, the RO denied the Veteran's claim for service connection for right hand arthritis. The Veteran timely perfected an appeal.
Evidence received since the September 2002 decision includes an April 2011 VA right hand examination, and more VA treatment records and statements from the Veteran. The Board is unable to view any of the newly received evidence as new and material. The newly-received lay statements from the Veteran simply reiterated his belief that his right hand arthritis stemmed from his right fourth finger fracture (the residuals of which are service-connected). As such, those statements are not "new" - it is simply the Veteran retelling the same statements which he provided in 2001/2002, with few changes. The VA treatments did not speak to the etiology of the Veteran's current right hand arthritis. As such, those statements are not "material," as they do not speak to the issue at hand.
The April 2011 VA examination provided evidence against the claim, a the examiner opined that the Veteran experienced age-related osteoarthritis in multiple parts of his body, including his right hand, and that his right hand arthritis was not in any way related to his service-connected right fourth finger fracture residuals.
In sum, the Veteran has not provided VA with new information, or new medical evidence, that would support his claim by tying his current right hand osteoarthritis to his active service or his right fourth finger fracture. As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) that the VA regulation as to reopening a claim "must be read as creating a low threshold," the claim is not reopened. 38 C.F.R. § 3.156(a) (2015).
The Board here notes that it is important for the Veteran to understand that even if the Board were to reopen the claim, entitlement to service connection for right hand arthritis would be denied, as the evidence of record, even when viewed in the light most favorable to the Veteran, is against his claim. The competent medical evidence of record shows that the Veteran's right hand osteoarthritis is not related to his active service (or any service-connected disabilities), and it is rather an age-related disease that affects a larger percentage of the general population. Simply stated, the most recent evidence provides, to some extent, more evidence against this claim.
In any event, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for right hand arthritis. The new evidence does not materially show that the Veteran's right hand arthritis is related to his active service, to any incident therein, or to any of his service-connected disabilities, including right fourth finger fracture residuals. Therefore, the Board concludes, that the Veteran has not presented new and material evidence to reopen his claim. Accordingly, the appeal is denied. See 38 U.S.C.A. § 5108 (West 2014).
B. Increased Rating for Diabetes Mellitus, Type II
The Veteran is currently rated at 20 percent for diabetes mellitus, type II. A 20 percent rating is warranted when the evidence shows the need for insulin and restricted diet, or the use of an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where the evidence shows the need for insulin, restricted diet, and regulation of activities. See 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2015).
The term "regulation of activities" means that the Veteran has been medically advised to avoid strenuous occupation and recreational activities (emphasis by the Board). Compensable complications of diabetes are to be rated separately, unless they are part of the criteria used to support a 100 percent rating. 38 C.F.R. § 4.119, DC 7913 (2015).
After a review of the evidence, and all of the Veteran's medical records, the Board concludes that a rating in excess of 20 percent is not warranted for the Veteran's diabetes mellitus, as the need for regulation of activities has not been clinically shown.
Of particular note, at the Veteran's October 2014 VA treatment records show that he came in for an annual eye examination. He was advised to take his diabetes medication and monitor his glucose, but was "released without limitations" and was not at any point advised to limit his activities due to his diabetes.
The Veteran's medical records (see July 2014 VA records) show that he takes daily insulin injections and oral medications for his diabetes. No activities restrictions were mentioned. Both VA and private medical records from 2003-2014 showed that the Veteran's diabetes was "poorly controlled" and "uncontrolled." Again, no restrictions of activities were mentioned. While the records do show several emergency room visits and brief hospitalizations, those were for issues unrelated to diabetes (gout in feet, urinary tract infections, and stroke).
Moreover, none of the clinical evaluations he underwent during this period mention any need to regulate his activities in order to improve control over his symptoms.
None of the Veteran's multiple VA examinations for diabetes and conditions other than diabetes showed any mentions of the need to restrict his activities due to his diabetes. The Board acknowledges that the ability to consider the impact of the Veteran's diabetes on his activities was inhibited by other musculoskeletal and neurological disorders he also experiences. Nevertheless, despite these comorbid conditions, there was no indication that the Veteran needed to regulate his activities in order to control his diabetes at any point during this appeal period.
Therefore, while there are a number of disorders that inhibit the Veteran's daily functioning (as reflected by his 90 percent disability rating), to include his neurological and musculoskeletal disorders, it is not factually ascertainable that he was required to actually regulate his activities in order to control his diabetes during the period on appeal. As a consequence, a rating in excess of 20 percent is not warranted.
The Board recognizes that the Veteran has reported that he is limited (or restricted) in his activities based on his diabetes symptomology. He has asserted that he get tired and cannot do as much as he used to do, or would like to do. However, it is important for the Veteran to understand what the Diagnostic Criteria mean when they state that "restriction of activities" is necessary for a higher evaluation. "Regulation of activities" per the Diagnostic Code means that the Veteran requires regulation of activities as part of medical management of diabetes mellitus. It means that the Veteran is required and/or medically advised, by his physician, to limit some of his activities (such as, for example, walking no more than a mile at a time, exercising for no longer than 30 minutes, lifting no more than 20 pounds, etc.), and that such limitations/regulation is required for the treatment of his disease. It does not mean that the Veteran can no longer perform some of the activities which he used to perform, or which he would perform if it was not for his diabetes. That type of impairment is already calculated into the Veteran's disability rating, and the Veteran is already compensated for it. See 38 C.F.R. § 4.119, DC 7913 (2015). He cannot get compensation twice for the same problem.
In other words, if the Veteran did not have the problems he has cited, there would be no basis for the current evaluations, let alone higher ratings.
The Veteran has also reported, and his medical records have confirmed, that he experiences complications of diabetes - diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes, erectile dysfunction associated with diabetes, and scrotal abscesses associated with diabetes. The Board notes that the Veteran receives separate disability ratings for those disorders, and they are considered as disorders in their own right that are secondary to the service-connected diabetes, and are not a part of the diabetes mellitus rating itself. He cannot get compensation for those other problems and then use those problems as a basis to get more compensation for this problem.
The Veteran's diabetes mellitus, type II, is described as accompanied by anterior cortical cataracts and erectile dysfunction. His visual acuity associated with anterior cortical cataracts would be rated noncompensable if it was rated on its own, instead of together with the Veteran's diabetes mellitus. See April 2012 rating decision. His erectile dysfunction secondary to diabetes mellitus has also been assigned a noncompensable rating. No evidence of record at any time during the period on appeal exists to show that either of those disorders should be rated higher than noncompensable. The Board therefore finds that no basis exists for the assignment of compensable ratings for the anterior cortical cataracts and erectile dysfunction. 38 C.F.R. § 4.119, DC 7913, DC 7599-7522 (2015).
There is no basis for the assignment of an increased rating in this case. As there is a preponderance of the evidence against the Veteran's claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied.
Extraschedular Considerations
In summary, on application of the pertinent rating criteria and regulations, the Board can find no basis to assign a higher rating in excess of the ratings currently assigned for the Veteran's diabetes mellitus, type II for any time during the period on appeal. During the entirety of the appeal period, the Veteran has certainly been competent to report his symptoms. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (Veteran is considered competent to testify as to the continuity of symptomatology capable of lay observation). However, to the extent that he has stated that his service-connected diabetes warrants a higher evaluation, the medical findings do not support his contentions. In this regard, ratings for this disability are determined by specific symptoms and physical manifestations, which are assessed by medical testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion regarding the severity of his disability under the Rating Schedule. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).
Therefore, the Board attaches greater probative weight to the medical findings of record and finds that the Veteran is currently compensated for the symptoms of which he complained and which he has regularly reported at the highest level allowed under the Rating Schedule for his specific disability.
Upon reviewing the longitudinal record in this case, the Board finds that at no time during the appeal period has the Veteran's diabetes been more disabling than as reflected by the currently assigned evaluation. See Fenderson, supra. Accordingly, there is no basis for the assignment of increased, staged or separate ratings in this case. As there is a preponderance of the evidence against the Veteran's claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied.
The Board also finds that consideration for an extraschedular evaluation, a component of every claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).
In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008).
In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable Diagnostic Code. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the Board has explained why the Veteran's relevant symptoms do not merit a rating higher than the one assigned. As such, the Veteran's symptoms are not so unusual that they fall outside the schedular criteria, and there are higher schedular ratings available (although the Veteran does not meet them, as addressed above).
Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Further, the record, including statements of the Veteran and medical professionals, does not show that his disabilities interact in a manner to make his disability picture an exceptional one and to require referral for extraschedular consideration based on the collective effect of his service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (2014).
Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the instant case, the Veteran has filed for TDIU, and the claim is adjudicated below.
C. TDIU
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2015). A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015).
"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2015). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. . . ."
A claim for TDIU "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015).
For a Veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). The regulation further provides that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2015). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (2015).
In any event, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2015). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2015); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation and Pension Service.
Additionally, the Court has recognized that, "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... [than] for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former regulatory provision requires marked interference with employment, the latter requires evidence of unemployability. Id.
In the present case, the Veteran is service-connected for renal involvement associated with diabetes mellitus, evaluated at 60 percent; peripheral neuropathy of the right upper extremity and the left upper extremity associated with diabetes mellitus, evaluated at 30 percent and 20 percent respectively; diabetes mellitus, at 20 percent; peripheral neuropathy of the left lower extremity and the right lower extremity associated with diabetes mellitus, evaluated at 20 percent and 20 percent respectively; residuals of a right fourth finger fracture, at zero percent; hemorrhoids, at zero percent; erectile dysfunction associated with diabetes mellitus, at zero percent; and a scrotal abscess associated with diabetes mellitus, also at zero percent.
Therefore, the Veteran meets the criteria for schedular consideration of TDIU because his disabilities have a combined rating of 90 percent (considering the bilateral factor for upper and lower extremities), and he has one disability rated at 60 percent.
Given the fact that the Veteran currently receives a 90 percent disability rating, this case has undergone extensive review.
As previously stated, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to render him unable to sustain substantial employment. Therefore, the question now presented is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Here, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected disabilities.
A May 2003 VA examination noted that the Veteran's mobility was restricted by his low back pain and obesity (neither of which are service-connected), but that he was able to carry out his day-to-day activities, providing evidence against this claim.
The Board acknowledges that the December 2007 VA examiner stated that the Veteran was incapable of performing his previous work as a tanker. However, objective evidence considered by the examiner lead him to the conclusion that the primary reason that the Veteran was unable to work, even in a sedentary position, was the Veteran's morbid obesity (which is not service-connected). The examiner noted that the Veteran's morbid obesity had an impact on his sleep apnea and his diabetes, causing him fatigue and drowsiness to the point where the Veteran "nearly fell asleep on two occasions during the exam.")
Clearly, the Veteran cannot work. This is not in dispute. The only question is whether it is his service connected problems that cause this.
The Board also acknowledges that a June 2008 VA examination report that the Veteran had limitations working, but that his main limitations resulted from his hypertension (which, again, is not service-connected), and not from his service-connected diabetes mellitus and/or peripheral neuropathy of the upper and lower extremities. The examiner also reported that the Veteran was able to "engage in his previous occupational environment regardless of his service-connected disabilities [.]"
This report provides more evidence against this claim.
An August 2010 VA diabetes examination noted that the effect of the diabetes mellitus on the Veteran's usual occupational and daily activities was "moderate." Again, this finding only provides more evidence against this claim.
Further, the Veteran reported that he was retired due to age or duration of work from the military and that he worked as a self-employed handyman after said retirement from 1987 to 2005. See September 2007 TDIU application. He has also related that he stopped working as a self-employed small engines repairman due to his peripheral neuropathy and the stresses of work. See September 2007 TDIU application, December 2007 VA examination.
During his June 2008 VA examination, however, the Veteran indicated that he worked part-time.
In sum, the record does not demonstrate that the Veteran's service-connected disabilities, in and of themselves, are of such severity as to preclude his participation in substantially gainful employment. It has been reported by VA examiners over and over that it was the Veteran's morbid obesity and hypertension (both of which are not service-connected) which are the main reasons why he would have trouble working.
In this regard, no one would suggest that the Veteran is not having many problems with his service connected disabilities. That is not the issue. The Veteran with a 90 percent disability rating will have many problems. If he did not, there would be no basis for the 90 percent finding. The critical question is if the Veteran cannot work as the result of his service connected problems. In this case, there is significant evidence against this claim suggesting that it is his service connected and nonservice connected disabilities that have caused his unemployment, not simply his severe service-connected problems.
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. Accordingly, the Board finds that TDIU must be denied. 38 C.F.R. § 4.16(a) (2015).
In reaching this decision, the Board has considered the Veteran's assertions that his service-connected disabilities have rendered him incapable of substantial employment. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
Again, no one is insinuating the Veteran's service connected disabilities do not cause many problems (in fact, it is important for the Veteran to understand that if the VA did not take into consideration the statement of the Veteran there would be limited medical evidence to support the current 90% finding). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He has indicated that his disabilities prevent him from doing his usual occupation, thereby causing him to be unemployed. The Board acknowledges his belief that his symptoms are of such severity as to warrant a TDIU; however, the competent evidence of record does not show that he in unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. It is again important for the Veteran to understand that, according to the medical evidence in this case, which the Board finds most probative and persuasive, it is the Veteran's non-service connected disorders which are his greatest hindrances when it comes to employment. The Veteran is not medically qualified to tell the Board why he cannot work. In fact, at some points, his own statements provide factual evidence against this claim, indicating in treatment records that it is his nonservice connected disabilities that cause a great deal of his problems. The Board cannot disregard such evidence.
In light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's TDIU claim. There is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The appeal is denied.
VA Duty to Notify and Assist
The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist Veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
In this case, the Veteran was provided multiple notice letters informing him of both his and VA's obligations. Therefore, additional notice is not required and any defect in notice is not prejudicial.
With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. The Veteran has also been provided with several VA examinations. Upon review of this examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007).
Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002)
ORDER
New and material evidence has not been received to reopen a claim for entitlement to service connection for right hand arthritis, to include as secondary to service-connected right fourth finger fracture residuals.
Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, with bilateral anterior cortical cataracts, is denied.
Entitlement to TDIU is denied.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs